March 30, 2007
Colburn on Public Lands and Ecology
Jamison E. Colburn (Western New England College School of Law) has posted Habitat and Humanity: Public Lands Law in the Age of Ecology on SSRN. Here's the abstract:
Public lands law in this country has been gridlocked for more than a decade at the intersection of democracy and ecology. The public is still made to believe that the "conservation" versus "preservation" of our discrete, bounded parcels of public land is the central issue and that political success is defined by the capturing of a parcel of public land and its being put under the preferred legal regime. Experts and activists have largely seen past that definition of success and have adopted open-textured notions of ecosystem- and adaptive management on which everyone agrees in the abstract but not in application. Nevertheless, public confidence in administrative agencies is very much contingent upon confidence in professional expertise, even as agency governance grows increasingly incompatible with any truly ecosystemic approach to public lands. Indeed, while active management and ecological restoration are superior frames of reference for most public lands today, the only way these can even possibly frame the conservation agenda will be from the bottom up. Thus, I argue that public land management agencies are facing a dilemma if they hope to respond both to ecological reality and democratic accountability in our pluralist society. This dilemma is presented most immediately in their many legal duties to generate formal, comprehensive plans for the lands they administer by which they must protect biodiversity at the same time they serve a diverse public according to the terms of almost a dozen very different enabling statutes. The dilemma is that land health is increasingly incompatible with democracy, at least so long as our democracy views the administrative agency as the solution to its problems.
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